The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release.
In December, the U.S. Sentencing Commission voted unanimously to set new guidelines that will make sentences for crack cocaine retroactive, a move that could make more than 19,500 convicted drug offenders currently serving time in prison eligible for early release.
In testimony he's expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately.
"Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday.
"Overall, the Sentencing Commission estimates that retroactive application of these lower guidelines could lead to the resentencing of more than 20,000 crack cocaine offenders, any number of whom will be released early."
Under the Justice Department proposal, convicts who are gun offenders or who have a history of violent crime would not be eligible for early release.
"Retroactive application of these new lower guidelines will pose significant public safety risks; risks that will be disproportionately felt in urban communities," Mukasey's statement said.
"Many of these offenders are among the most serious and violent offenders in the federal system and their early release at a time when violent crime is rising in some communities will produce tragic, but predictable results."
Mukasey will be testifying before the House Judiciary Committee, whose ranking member, Rep. Lamar Smith, R-Tex., has introduced legislation to halt the retroactive release.
"Many of these criminals are dangerous repeat offenders who possessed firearms during their crimes," Rep. Smith said in introducing the measure.
A senior Justice Department official described the measure as uncompromising on Wednesday. "The Lamar Smith bill is a straight-up bill opposing retroactivity," the official said.
The December move by the Sentencing Commission came shortly after the Supreme Court issued a ruling to allow judges greater latitude in sentencing crack cocaine offenders to shorter prison terms.
Congress passed increased penalties on crack cocaine over powder cocaine in 1986, as the crack epidemic led to increased violence and addiction in U.S. cities. The law introduced mandatory minimum sentences for crack cocaine offenses that were the same as those for the possession of 100 times as much powdered cocaine. The law has been criticized as being unjustly harsh on poor and African-American offenders, who make up a proportionally higher number of defendants in crack cocaine cases.
With less than 30 days to pass legislation before the first offenders are eligible for release, it is unclear how quickly Congress will move.
Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., applauded the commission following its December decision, saying, "I abhor the damage done by drug abuse, but I also abhor that the penalties for those in our inner cities are different than for those in affluent society… For 21 years, far too many African Americans and low-level drug offenders were subject to unfair and overly punitive federal crack cocaine sentencing laws."